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State v. Wm. Sawyer, dissenting opinion

ALEXANDER, J., with whom CALKINS, J., joins, dissenting.

	[¶12]  I respectfully dissent.  The Fifth Amendment to the United
States Constitution mandates that:  "No person . . . shall be compelled in any
criminal case to be a witness against himself . . . ."  U.S. Const. amend. V.
Article 1, section 6 of the Maine Constitution provides essentially the same
protection:  "The accused shall not be compelled to furnish or give evidence
against himself or herself."  Me. Const. art. I, § 6.  Today, the Court
apparently modifies those centuries old protections to require that a
criminal defendant present at least some evidence questioning the
voluntariness of a statement or risk losing a favorable ruling on an issue upon 
which the State bears the burden of proof beyond a reasonable doubt.{6}  See
State v. Coombs, 1998 ME 1, ¶ 10, 704 A.2d 387, 390.  A defendant may
have the responsibility to raise the issue of voluntariness of a statement.  See
M.R. Crim. P. 12(b)(3) & 41A.  That obligation was satisfied when Sawyer
filed his motion to suppress.  See M.R. Crim. P. 41A(a).
	[¶13]  With the motion to suppress filed, the State "bears the burden
of establishing voluntariness beyond a reasonable doubt" before the
statement can be admitted in evidence against the defendant.  Coombs, ¶
10, 704 A.2d at 390.  See also State v. Rees, 2000 ME 55, ¶¶ 5-8, 748 A.2d
976, 978-79; State v. Caouette, 446 A.2d 1120, 1122-23 (Me. 1982).
	[¶14]  We require the State to meet this burden as a prerequisite to
use of a defendant's statement at trial, for reasons originally articulated in
State v. Collins, 297 A.2d 620, 626 (Me. 1972), and confirmed in Caouette
and Rees, because:
The constitutional privilege against self-incrimination . . .
reflects a high priority commitment to the principle that
excluded as available to government is any person's testimonial
self-condemnation of crime unless such person has acted
'voluntarily' i.e., unless he has 'waived' his constitutional
privilege against self-incrimination by choosing, freely and
knowingly, to provide criminal self-condemnation by utterances
from his own lips.

Rees, 2000 ME 55, ¶ 6, 748 A.2d at 978 (quoting Collins, 297 A.2d at 626)
(emphasis in original).  See also Caouette, 446 A.2d at 1122.
	[¶15]  Any party, civil or criminal, defending against an issue on which
the other party has the burden of proof, may rely solely on the evidence
presented by the proponent of the issue and then urge, as Sawyer
successfully urged here, that the evidence is insufficient to satisfy the
proponent's burden of proof.  In supporting the position that the burden of
proof is not satisfied, the opponent may rely on facts presented in the
hearing, reasonable inferences drawn from those facts, and the trial judge's
discretion to simply disbelieve the proponent's witness.  See In Re Fleming,
431 A.2d 616, 618 (Me. 1981).  This is so even if the proponent's testimony
"was undisputed." Id.  See also Foss v. Ingeneri, 561 A.2d 498, 499 (Me.
1989) (holding that although liability was established by default and plaintiff
"may have proved a loss," jury award of no damages affirmed because
plaintiff had burden of proof).
	[¶16]  To have us affirm the trial judge's finding that the State's
burden of proof has not been met, the defendant need not "present
evidence to indicate that his statement was involuntary."  Ante, ¶ 11 n. 5
(Court's opinion).  Rather, to have us reverse the trial judge's finding, the
State must demonstrate to us that a contrary finding-here that the
statement was voluntary beyond a reasonable doubt-was compelled by the
evidence.  See Caouette, 446 A.2d at 1123-24.  See also Estate of Sylvester v.
Benjamin, 2001 ME 48, ¶ 9, 767 A.2d 297, 300.  A voluntariness finding
beyond a reasonable doubt cannot be compelled where it was within the trial
judge's discretion to disbelieve part or all of the testimony of the State's
single witness.
	[¶17]  Although different factfinders could reach a different result,
that is not to say that a different result is compelled.  Any police
interrogation that focuses on particular suspects regarding particular events
has the potential for creating a "coercive atmosphere."  State v. Preston,
411 A.2d 402, 406 (Me. 1980).  When "compulsion of whatever nature or
however infused, propels or helps to propel the confession," use of the
confession "offends due process." Culombe v. Connecticut, 367 U.S. 568,
602 (1961) (quoted in Caouette, 446 A.2d at 1123).
	[¶18]  In the instant case, the trial judge could have disbelieved the
officer's testimony regarding the circumstances of Sawyer's statement. 
Alternatively, the trial judge could have determined that the evidence
presented by the officer indicated sufficiently coercive circumstances at the
time the officer spoke with Sawyer that the voluntariness of Sawyer's
statement could not be proven beyond a reasonable doubt.  Certainly, this
evidence "does not compel a finding that the defendant was free from
'compulsion of whatever nature.'" Caouette, 446 A.2d at 1123-24 (quoting
Culombe, 367 U.S. at 602).
	[¶19]  In consideration of a criminal defendant's rights, the State has
an appropriately high standard of proof.  At the same time, the scope of our
review of the trial judge's decision is very narrow.  See Coombs, 1998 ME 1,
¶ 7, 704 A.2d at 389-90.  We cannot broaden the scope of review by
characterizing the trial judge's findings as issues of law rather than issues of
	[¶20]  Voluntariness is a question of fact for the trial court.  The trial
court decides whether the State has proven voluntariness beyond a
reasonable doubt based on its view of the evidence and the totality of the
circumstances, including its capacity to believe and to disbelieve witnesses. 
Rees, 2000 ME 55, ¶ 3, 748 A.2d at 977.  It is not our place, as an appellate
court limited to deferential review, to usurp the trial court's role by applying
our own totality of the circumstances test and recharacterizing voluntariness
as a "legal conclusion" rather than a finding of fact in order to vacate a
ruling granting a motion to suppress.  We have deferentially reviewed and
affirmed voluntariness findings and denials of motions to suppress, even
where a fair reading of the record indicated significant coercion.  See
Coombs, 1998 ME 1, ¶ 11, 704 A.2d at 391; State v. Kremen, 2000 ME
117, 754 A.2d 964.  Grants of motions to suppress and findings that the
State has failed to meet its burden of proof should be accorded the same
deferential review.
	[¶21] If we respect the high standards of proof imposed on the State
and if we respect the narrow scope of our review of trial court findings that
a proponent's burden of proof has not been met, the trial judge's findings
that the voluntariness of Sawyer's statement was not proven beyond a
reasonable doubt must be affirmed.
	[¶22]  The question regarding the sufficiency of the evidence to
support probable cause to arrest presents a different issue.  The officer was
at the scene, he observed the various individuals involved, and indisputably
he heard Sawyer state that he was the operator of the motor vehicle. 
Probable cause may be based on a wide variety of information, some of which
may be inadmissable at trial.  While finding against the State on the
voluntariness issue, the court made no finding of official misconduct. 
Because there was no finding of official misconduct incident to the arrest of
Sawyer, and considering all the evidence available to the officer at the time,
the officer had probable cause, as a matter of law, to believe that Sawyer had
operated the vehicle in violation of the law.  Thus, I concur in the result as
to the Court's ruling on the suppression of the arrest.
	[¶23]  Accordingly, I would affirm the ruling of the trial court
regarding suppression of the statement, but I concur in the result regarding
suppression of the arrest.

Attorneys for State: David W. Crook, District Attorney Alan P. Kelley, Deputy Dist. Atty. Paul Rucha, Asst. Dist. Atty. 95 State Street Augusta, ME 04330 Attorneys for defendant: David M. Lipman, Esq. Gregg. D. Bernstein, Esq. Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04332-1051
FOOTNOTES******************************** {1} . Though the officer was originally conducting an investigatory stop based on a civil violation, Sawyer was charged with criminal OUI. {2} . 29-A M.R.S.A. § 2411 states in pertinent part: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. {3} . The motion states in pertinent part: 1. Certain statements were obtained from the Defendant as a result of interrogation contrary to the Defendant's constitutional rights under the Constitution of the state of Maine and the United States Constitution. 2. The arrest in this matter is a product of an unconstitutional interrogation and/or without probable cause such that the arrest should be suppressed under the Constitution of the state of Maine and the United States. {4} . The court made the following findings to determine that Sawyer was not in custody: The court finds that there were two vehicles stopped in a private driveway, four people were walking around and one officer was present in a police cruiser, the cruiser blocked the vehicles, and the officer initiated questions when he first arrived on the scene to determine who was driving the vehicles. The court concludes that [the] officer's conduct was not of such a coercive nature nor the physical setting so unfriendly that the defendant would have believed he was in police custody or constrained to the degree associated with formal arrest. {5} . Furthermore, Sawyer did not present evidence to indicate that his statement was involuntary. See People v. Cozzi, 416 N.E.2d 1192, 1195 (Ill. App. 1981) ("Where the State makes prima facie showing that a confession was voluntary, the burden of producing evidence to show that confession was involuntary shifts to the defense, and shifts back to the State only when defendant has produced such evidence."); see also State v. Eaton, 577 A.2d 1162, 1167 (Me. 1990) (finding a statement to be voluntary when the officer testified to the non-coercive nature of the incident and the defendant did not produce contrary evidence). {6} . To support this proposition, the Court cites State v. Eaton, 577 A.2d 1162, 1167 (Me. 1990). Eaton affirmed a trial court finding that a defendant's statement was voluntary. In supporting the result, our opinion noted that the officer's testimony supported the voluntariness finding and that the defendant "produced no evidence to the contrary." Id. That statement, affirming a voluntariness finding, provides absolutely no support for the proposition that a defendant's failure to present evidence may cause him to lose a favorable ruling that the state has not met its burden of proof on the voluntariness issue.

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